Robin Rosenbaum makes it out of Committee

Next step is the Floor vote. Glenn Sugameli tells me that this will likely happen after May 7, but at least we are moving in the right direction... Congrats to Judge Rosenbaum on today's vote.

Who wants some Nutriloaf?

Apparently, this is the junk they are giving to inmates that aren't behaving. It tastes really gross. From Judge Posner's opinion:

On the second and third stays, which lasted a week and 10 days respectively, the jail fed him only “nutriloaf,” pursuant to a new policy the jail had adopted of making nutriloaf the exclusive diet of prisoners who had been in segregation in prison at the time of their transfer to the jail, even if their behavior in the jail was exemplary. Nutriloaf (also spelled “nutraloaf”) is a badtasting food given to prisoners as a form of punishment (it is colloquially known as “prison loaf” or “disciplinary loaf”). On his third stay, after two days on the nutriloaf diet, the plaintiff began vomiting his meals and experiencing stomach pains and constipation. (He had vomited during the second stay as well.) He stopped eating nutriloaf and subsisted for the eight remaining days of his stay on bread and water (it’s unclear how he obtained the bread). He had weighed 168 pounds before his second and third stays at the jail, had lost either 5 or 6 pounds during the second stay, had not regained them, and by the end of the third stay was down to 154 pounds: he had lost 8.3 percent of his weight as a result of the two stays (and he had not been overweight at 168).

The prisoner sued and the district court granted summary judgment. Judge Posner wasn't happy:

The defendants’ response to his suit has been contumacious, and we are surprised that the district judge did not impose sanctions. The defendants ignored the plaintiff’s discovery demands, ignored the judge’s order that they comply with those demands, and continued their defiance even after the judge threatened to impose sanctions. But the judge failed to carry through on his threat, so the threat proved empty. The only evidence the defendants submitted in support of their motion for summary judgment was a preposterous affidavit from a sheriff’s officer who is also an assistant chief of a suburban Wisconsin fire department. The affidavit states only, so far as bears on the appeal, that “Nutraloaf has been determined to be a nutritious substance for regular meals.” The defendants made no effort to qualify him as an expert witness. As a lay witness, he was not authorized to offer hearsay evidence (“has been determined to be . . . nutritious”). No evidence was presented concerning the recipe for or ingredients of the nutriloaf that was served at the county jail during the plaintiff’s sojourns there. “Nutriloaf” isn’t a proprietary food like Hostess Twinkies but, like “meatloaf” or “beef stew,” a term for a composite food the recipe of which can vary from institution to institution, or even from day to day within an institution; nutriloaf could meet requirements for calories and protein one day yet be poisonous the next if, for example, made from leftovers that had spoiled. The recipe was among the items of information that the plaintiff sought in discovery and that the defendants refused to produce. Even an affidavit from an expert stating after a detailed chemical analysis that “nutriloaf meets all dietary requirements” would be worthless unless the expert knew and stated that nutriloaf invariably was made the same way in the institution. The assistant fire chief’s affidavit says no such thing—and he was not an expert. In addition to stonewalling the plaintiff and the district judge, the defendants failed to file a brief in this court and failed to respond to our order to show cause why they hadn’t filed a brief. They seem to think that the federal courts have no jurisdiction over a county jail.

You can tell by now where this is going. Order of summary judgment reversed... One last note from Judge Posner:

We order the defendants to show cause within 14 days of the date of this order why they should not be sanctioned for contumacious conduct in this court. If they ignore this order to show cause like the last one, they will find themselves in deep trouble.

I think the sanctions should be that they eat Nutriloaf for a week.

What should happen to prosecutors who violate Brady? (UPDATED)

That's the question discussed in this WSJ article, which explains that prosecutors are rarely punished:

Federal prosecutors are rarely punished for failing to meet their constitutional obligations to provide defendants with evidence that points toward their innocence, according to available data. A report published early last year by the Federal Judicial Center, an arm of the federal court system, surveyed more than 600 federal judges and found that 30% reported having one or more such disclosure violations by prosecutors in the past five years. Those judges said, according to the study, that they found the prosecutors in contempt less than 1% of the time and only recommended possible discipline by the Justice Department or state bar in a few of the cases. *** The Stevens case report pointed to the 2011 Federal Judicial Center study that found 38 of the nation's 94 federal court districts had issued specific disclosure requirements regarding Brady and other evidence. The report said that if such a specific order had been issued in the Stevens case, some of the prosecutors might have been open to charges of criminal contempt.

UPDATE -- This blog covered the need for Brady reform before and the recent bill introduced by Republican Sen. Murkowski.... I guess I shouldn't be surprised that DOJ is opposing the bill. BLT covers that opposition here. And here is the entire DOJ statement on the matter.

Magistrate Judge Brown's retirement luncheon...

...was today. We wish him the very best. Meantime, Magistrate Judge Rosenbaum's nomination is on the Judiciary Committee's calendar tomorrow..

“NO electronics devices. Note taking only material is allowed in the Courtroom (i.e., pen & pad).”

That was the sign on the door to the Supreme Court his morning, meaning no iPhones, no Blackberrys, no iPads, no Twitter or anything else.  But here's the oral argument and transcripts which were posted after the argument.  Today was the very dry argument about jurisdiction and SCOTUSBlog has all of the analysis, including Lyle Denniston's take here.  From what everyone is saying, the Court will reach the merits of the healthcare debate...

While we are on the Supreme Court, it granted cert in Florida v. Harris today, the dog sniff case. The issue is: Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.
In other news, here's Herman Cain's most recent video:


Closer to blog's jurisdiction, below is a 60 Minutes piece from last night showing how prosecutors kept a man in jail for 25 years. It's amazing to me that DOJ is still arguing against Brady reform.

Ft. Pierce courthouse dedication and other Monday notes

1.  The Ft. Pierce courthouse was dedicated on Friday:

After what some government officials called a 25-year effort, theU.S. District Court, Southern District of Florida and the U.S. GeneralServices Administration formally dedicated the new federal courthousein Fort Pierce on Friday.
U.S. Sen. Bill Nelson called the $56.3 million, 123,400-square-footbuilding "a jewel for downtown Fort Pierce and the Treasure Coast."Nelson, who spearheaded efforts to construct the courthouse, praisedthe nation's criminal justice system and addressed the highlypublicized shooting death of Trayvon Martin by a community watchvolunteer in Sanford.
"We are not just dedicating a building, we are dedicating a conceptthat this is a country that abides by the rule of law," said Nelson,who delivered the ceremony's keynote speech.
***
According to U.S. District Judge Donald Graham, the judges in theSouthern District voted to install a permanent district judge at theFort Pierce courthouse pending White House and Senate approval. Grahamsaid the process could be lengthy, especially during an election year.
Graham was pleased with the courthouse's stunning aesthetics and security.
"The key issue is security," said Graham of the building, whichboasts blast-resistant materials, concrete walkways, undergroundparking and a sun-filled atrium.
"Its been a labor of love for many of us," said Graham, who addedtwo floors can be expanded to include additional courtrooms if needed."It's a beautiful, beautiful building, and it's functional, too."

2. The health care oral arguments start today, and the lawyers have been training... literally (via NY Times):

Last week, there were so many of the mock arguments that lawyers callmoot courts that they threatened to exhaust something that had neverbeen thought in short supply: Washington lawyers willing to pretend tobe Supreme Court justices.

The problem, said Paul D. Clement, who represents the 26 stateschallenging the law, was not just the length of the arguments that thecourt will hear, but the variety of topics to be addressed.

The law itself is a sprawling revision of the health care system meantto provide coverage to tens of millions of previously uninsuredAmericans by imposing new requirements on states, employers andinsurance companies and, through what has been called the individualmandate, requiring most Americans to obtain insurance or pay a penalty.

The decision in the case will have enormous practical consequences forhow health care is delivered in the United States. It is likely to landin June, with large repercussions for both President Obama and hisRepublican challenger just before the two parties hold their nominatingconventions.

The justices have broken the case into four discrete issues, schedulinga separate session for each, for a total of six hours, the most in morethan 40 years. Mr. Clement, like his principal adversary, SolicitorGeneral Donald B. Verrilli Jr., will be arguing three times.

3.  Congrats to my boys from Rakontur, celebrating their 10th anniversary.  Nice coverage in the Herald, and cool events all week at the O Cinema.  Since I'm a Miami native, I just love that they are home boys -- making movies starring this city:

The bond between Corben, Spellman and Cypkin — who are all 33,became friends at Highland Oaks Middle School, made their first shortfilm in high school and co-founded rakontur in 2001 — has grownstronger with each of their successes.
So, too, have their roots to Miami.
“Wemade a decision to stay in Miami to further our careers, which seemsanti-instinctual in our business,” says Corben, who has directed all ofrakontur’s films. “But it was a deliberate, calculated decision. It wasa brand-basing decision. We didn’t want to be another group of schmuckstap-dancing Los Angeles or New York. There have been a lot of talentedfilmmakers who have come from Miami, but none whose work is associatedwith the city the way Woody Allen is associated with New York or BarryLevinson and John Waters are associated with Baltimore. We wanted to beknown as the Miami guys.”

Read more here: http://www.miamiherald.com/2012/03/25/2711793/10-years-of-rakontur-celebrates.html#storylink=cpy

 4.  Combining items 2 (the Supreme Court) and 3 (Miami), there's this story about a case from South Florida going to the Supremes (via Curt Anderson):

 Court documents refer to it as "that certain unnamed gray, two-storyvessel approximately 57 feet in length." To Fane Lozman, it was afloating Florida home never intended to sail the seas. Now, along-running dispute over exactly what the structure was has landedbefore the U.S. Supreme Court.
Lozman, a 50-year-old former Chicago financial trader, seeminglylost his nearly six-year battle with the seaside city of Riviera Beachwhen his home was hauled away in 2009 and later destroyed by courtorder. But Lozman refused to give up, claiming officials vindictivelyand illegally targeted him for eviction from the city's marina becauseof his vocal opposition to a major redevelopment plan.
"Whatever they had to do to get me out of there, they were going todo it," Lozman said. "All I want to do is live a quiet life. I didn'tlook for this drama, it came to me because I wanted to stay at themarina."
The only-in-Florida backstory matters less to the Supreme Court thana more fundamental question: When is something a vessel, and when is itnot? The court agreed to take the case earlier this year and isexpected to hear arguments in October.

5.  St. Thomas is having a wonderful event this Friday:

On March 30, 2012, the St. Thomas Law Review and the Daily Business Review will host a symposium titled, Media and the Law: Adjusting Trial Strategy in Light of Media Portrayal and Public Perception.  From 9 a.m. to 5:15 p.m., the symposium will focus on how judges, litigants, and members of the media face an increasing number of challenges regarding public influence and potential jury misconduct as technology advances.  Tickets are $25 and include breakfast, lunch, and an evening reception.  Credits for Continuing Legal Education are pending approval with the Florida bar.

The luncheon will feature keynote speaker Professor Charles Nesson, Weld Professor of Law at Harvard Law School, and Founder and Faculty Director of the Berkman Center for Internet and Society.  Professor Nesson has litigated high profile cases such as White v. Crook, Anderson v. Cryovac, and Daubert v. Merrell Dow Pharmaceuticals, a United States Supreme Court case.  He defended Daniel Ellsberg in the 1971 Pentagon Papers case, and represents Joel Tenenbaum in a well-publicized music file sharing case, Sony BMG v. Tenenbaum.

The symposium will also consist of three panels and will be moderated by Benedict P. Kuehne of the Law Offices of Benedict P. Kuehne, P.A.  Each panel will be comprised of three to four members of the legal profession who have faced challenges in their handling of high-profile cases as a result of media coverage and exposure, and members of the media who inform the public of such cases.

The media panel will include three members of the media: David Lyons, Editor-in-Chief of the Daily Business Review; Manny Garcia, Executive Editor, El Nuevo Herald; Willard Shepard, an Anchor and Journalist with NBC 6.  These panelists will provide keen insight into their experiences reporting high profile cases.  Their discussion will cover the ethical dilemmas the media faces to appeal to public interest while protecting the sanctity of our judicial system, and the responsibility of the media in balancing these interests.

The litigants panel will consist of three attorneys: Carey Haughwout, Palm Beach Public Defender; Ervin Gonzalez, attorney at Colson Hicks Edison; and Abraham Laeser, a retired prosecutor from the Miami-Dade State attorney’s office.  These panelists will discuss their experiences in handling high-profile cases, and the effect of media coverage on how they approach the case.  The panelists will also provide their perspectives on attorneys’ ethical obligations when communicating with the press.

Finally, the ethics panel will feature Florida Supreme Court Justice R. Fred Lewis, Chief Magistrate for the Southern District of Florida, Judge Stephen Brown, and Anthony Alfieri, Professor at the University of Miami School of Law.  These panelists will explore ethical issues and dilemmas litigants and judges face in an era when the public has a seemingly insatiable appetite for information about high profile legal cases and cutting edge legal issues.

Additionally, the symposium will host Judge George Greer, who received national attention when he presided over the Terri Schiavo case.  Judge Greer’s session, “A Conversation with Judge Greer,” will be moderated by Professor Tamara Lawson, Professor of Law at St. Thomas University School of Law.

Did George Zimmerman commit a federal crime?

There is quite a debate about whether Zimmerman can be charged federally for killing Trayvon Martin.  Zimmerman was not a police officer or acting under color of law, so there is no federal jurisdiction there.  And the shooting did not occur on federal land and the victim was not a federal officer, so nothing there.  But, there is one statute that may apply: 18 U.S.C. 249, Hate Crime Acts, which was just enacted in 2009.  That statute provides:

(a) In General.— (1) Offenses involving actual or perceived race, color, religion, or national origin.— Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if—

(i) death results from the offense; or

(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

In other words, if Zimmerman killed Martin because of his race, then he can be prosecuted under this section. 

There haven't been too many prosecutions under Section 249.  The internet reveals these two cases:

In May 2011, a man in Arkansas pled guilty under the Act to running a car containing five Hispanic men off the road. As a result, he became the first person ever convicted under the Act. A second man involved in the same incident was later convicted under the Act but has asked for a new trial.


In August 2011, one man in New Mexico pled guilty to branding a swastika into the arm of a developmentally disabled man of Navajo descent. A second man entered a guilty plea to conspiracy to commit a federal hate crime. The two men were accused of branding the victim, shaving a swastika into his head, and writing the words "white power" and the acronym "KKK" on his body. A third man in June 2011, entered a guilty plea to conspiracy to commit a federal hate crime. All three men were charged under the Act in December of 2010.

 These cases seem much clearer cut than Zimmerman's for a federal prosecution.  I'm not a prosecutor, but it seems to me that the Stand Your Ground defense would be much easier to get over for the State than attempting to prove intent under the Hate Crimes Act.  Based on the 911 call and the other publicly known facts, I'm not sure how this is a Stand Your Ground case...

There have been two local Stand Your Ground/Self Defense cases in the news recently.  The Herald covered this one yesterday and the O'Donnells just got a hung jury in Key West on this case where a young man stabbed someone during Fantasy Fest. 

Okay, you guys are probably ready for me to get back to Paris Hilton....

Wednesday news and notes

1.  John Goodman is testifying right now...  

Dressed in a dark suit and dotted tie, Goodman recounted the events of the night of the crash that led to the death of 23-year-old Scott Wilson, gesturing often with his hands and stammering at times through his responses in a syrupy Southern accent.
Goodman said he had two shots of tequila and two shots of vodka over the course of the night. He said he left the Players Club shortly before the crash on a quest for a Wendy's frosty. After the crash, he said, he didn't know where he was and certainly didn't realize that Wilson's car had tumbled into the canal, where he drowned.
"If you knew someone was in the canal, what would you have done?"
"I would have done whatever I could have done to help," Goodman said, over the objection of prosecutor Ellen Roberts.

2.   A federal prosecutor was commenting anonymously about a case.  Not a good idea:

U.S. Attorney Jim Letten confirmed this afternoon that Sal Perricone, one of his top prosecutors, has been using the handle "Henry L. Mencken1951" to bash landfill owner Fred Heebe and a raft of other local and national figures, including federal judges, in the comments section on NOLA.com. Perricone "'readily admitted" using the psuedonym, and the matter has been referred to the Justice Department's Office of Professional Responsibility, Letten said.

Assistant U.S. Attorney Sal Perricone 'readily admitted' using the psuedonym, and the matter has been referred to the Justice Department's Office of Professional Responsibility, his boss, U.S. Attorney Jim Letten, said.

It will be up to that office to determine Perricone's punishment, Letten said.
Perricone -- whom Letten called a "fine veteran attorney" -- has been recused from all matters that he discussed in comments on NOLA.com, Letten said. He said he could not enumerate which cases that might include.
He added that Perricone, 60, the office's senior litigation counsel, "knows the restrictions and laws under which we operate."

3.  The Supreme Court decided today in a pair of cases that defense lawyers can be ineffective at the plea stage before trial. From Lafler v. Cooper:

Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.

4.  The NY Times says that the Armed Career Criminal Act is no good:

The Armed Career Criminal Act has long been a source of confusion for federal judges who are required to apply it in criminal cases. The act ratchets up sentences to a mandatory minimum of 15 years for felons who illegally possess guns and have three prior violent felony convictions. Some judges have misinterpreted this statute, with grievous results, as happened in the case of John Joel Foster. He could end up serving 15 years in prison rather than 27 months for possession of a firearm because the United States Court of Appeals for the Fourth Circuit wrongly categorized 20-year-old crimes as violent felonies. 

5.  The Supreme Court is going to determine whether Apprendi applies to fines:

Supreme Court argument on Monday was how large a role the jury must play in setting fines against corporations found guilty of environmental crimes. But the real issue in the case, as the justices’ questioning made clear, was whether the court remained committed to the logic of a 2000 decision that said the Constitution sometimes bars judges from making factual findings that lead to increased punishments.

The case arose from the conviction of the Southern Union Company for storing mercury, a hazardous waste, without a permit. The law the company violated allowed fines up to $50,000 a day, and the government contended that the company had violated the law for 762 days. That would have added up to about $38 million. The trial judge imposed penalties of about $18 million.

The company objected, contending that the jury had found only that the company violated the law for at least one day. The federal appeals court in Boston accepted that view but said it did not matter. The trial judge, it said, was entitled to determine how to calculate the penalties.

In asking the Supreme Court to hear its appeal, the company said the appeals court’s analysis could not be reconciled with the 2000 decision, Apprendi v. New Jersey, which said that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”